Sexual consent should be defined in law, the country’s leading rape support group has said, as many victims who contact it are unsure whether the attack they suffered was a criminal offence.
Rape Crisis Network Ireland (RCNI) said legal clarity was required and suggested to Frances Fitzgerald, the justice minister, that consent should be defined as follows: “An individual consents if they agree by choice and have the freedom and capacity to make that choice”.
Ms Fitzgerald said in May that consent should not be defined in law. She said there was “a real danger that it might cause unintended problems without any obvious benefit”, and suggested that existing case law on the issue was sufficient.
The RCNI asked the minister to change her mind and add its definition to the Sexual Offences Bill, which was published in September.
It said that in July and August its staff accompanied 108 women to sexual assault treatment units. Its own research has shown that only one in ten of these will go on to bring charges against their attacker.
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The RCNI also said that many more people who called its helpline did not come forward, as they were unsure whether they had been the victim of an assault or not.
Campaigners argue that the lack of a definition of consent helps to perpetuate a “rape myth”, whereby sexual assault of an adult is only considered a crime if the attack is violent and carried out by a stranger.
“We speak to women all the time, especially younger women, who feel they have been assaulted but aren’t sure because they know the person and there was no violence. So often the first thing a woman says when she calls a rape crisis centre is, ‘I’m not sure if I’m calling the right place’,” Cliona Saidlear, the acting director of the RCNI, said.
“There is a culture of victim-blaming around rape, so we have to make it clear what consent is. Even victims sometimes feel that they ‘must have been asking for it’ or ‘deserved it’ because they left themselves vulnerable, by getting drunk or going home with someone,” she said.
Non-consensual sex is illegal in Ireland. The law states that the failure to offer resistance does not amount to consent. There is, however, no actual definition of consent.
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The RCNI’s definition was drawn up with assistance from Susan Leahy, a lecturer in law at the University of Limerick.
The RCNI also supplied ten examples illustrating non-consent to Ms Fitzgerald. They cover issues such as intoxication, withdrawing consent during sexual activity, deception, threats of violence, and abuse of authority. The RCNI also stated that someone cannot consent if they are “too affected by alcohol or drugs to freely agree”.
Many of these issues were raised in July during the case of Magnus Meyer Hustveit, a 25-year-old Norwegian, who pleaded guilty to raping his girlfriend in her sleep. He received a seven-year suspended sentence.
Niamh Ní Dhomhnaill, his victim, waived her right to anonymity in order to question the leniency of the sentence, and has since joined a campaign by the Dublin Rape Crisis Centre urging men to ask for consent before having sex.
Ellen O’Malley-Dunlop, the chief executive of the centre, said young women had responded positively to the campaign.
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“They are hungry for information on consent because they know what it feels like to wake up after a night out and feel like something terrible has happened, but not know why,” she said.
Louise O’Neill, whose novel Asking For It is about sexual assault in a small Irish town, launched the RCNI’s student consent campaign.
“I use the analogy that drink-driving was OK when my parents were my age but now it just isn’t accepted,” Ms O’Neill said.
“The same shift needs to happen about the idea of what it is OK to do to someone without their consent. Sexual assault is one of the few crimes where we rush to heap blame on the victim.”